This page uses so called "cookies" to improve its service (i.e. "tracking"). Learn more and opt out of tracking
I agree
transnational law transnational law (lex mercatoria or international business law) and "Form and contents of award" 2016-03-01 13:58:16 https://www.trans-lex.org/img/logo_ball.png
Principle

No. XIII.4.2 - Form and contents of award

(a) The award shall be made in writing and shall be signed by the arbitrator or arbitrators. In arbitral proceedings with more than one arbitrator, the signatures of the majority of all members of the arbitral tribunal shall suffice, provided that the reason for any omitted signature is stated.

(b) The award shall state the reasons upon which it is based, unless the parties have agreed that no reasons are to be given or the award is an award on agreed terms under Principle XIII.4.2 .

(c) The award shall state its date and the place of arbitration. The award shall be deemed to have been made at that place.

Commentary

1 Most arbitration laws and rules contain a number of provisions pertaining to the form in which the award is to be rendered by the tribunal. Typically, an award must contain:

-

the complete names and domiciles of the parties and of their legal representatives;

-

the name(s) of the arbitrator(s);

-

a recital of the essential milestones of the proceedings (dates of briefs and hearings), demonstrating that the parties had adequate opportunity to present their case;

-

the tribunal’s holding on the merits including costs;

-

the reasons for the tribunal’s decision;

-

a determination of the monetary or other relief to be accorded, including damages, interest and costs;

-

the date of the award;

-

the place of the arbitration;

-

the signature(s) of the arbitrator(s).

2 The significance of some of the issues listed in Para 1 goes far beyond that of a mere formality. Thus, the place (‘seat’) of arbitration indicated in the award determines the nationality of the award. The award’s nationality, in turn, is important for determining the competent court for setting aside procedures and also for determining whether the award can be enforced under the system of the New York Convention. The indication of the place of arbitration in the award, therefore, serves the purpose of providing legal certainty at the setting aside and enforcement stage. However, the arbitrators are not required to hold the hearings and deliberations at that place. It is also important to note that the arbitrators are under no obligation to actually ‘make’ (i.e. sign) the award at that place. The tribunal could conduct an arbitration without ever physically meeting or conducting hearings or deliberating or signing the award at the seat of the arbitration. To avoid any uncertainties in this important area, Subsection (c) provides that the award "shall be deemed to have been made" at the place of arbitration, i.e. the seat indicated in the award.

3 Together with the tribunal’s holding on the merits of the dispute, the reasons given by the arbitrators for their decision constitute the central part of the arbitral award. It is, therefore, very rare for parties to agree that no reasons are to be given by a tribunal for its decision on the merits. The standards to be applied to the reasons of the award are not as high as those which apply to court decisions.

4 International arbitrators sometimes render ‘procedural orders’ in which they decide on substantive legal issues which are in dispute between the parties. In such a case, the term given to the decision by the arbitrators does not prejudice a court’s right to look behind the terminology and formalities chosen by the arbitrators and to consider the decision as a genuine arbitral award. A court may have to scrutinize the true nature of the decision in setting aside proceedings, which are only available for genuine arbitral awards. The French Court of Appeal of Paris (Société Braspetro Oil Services (Brasoil) v. GMRA, Rev. d’Arb. (1999), 834, 836 et seq.) has made it clear that if the arbitrators have dealt with the merits of the parties’ presentations and have put an end to the disputed issue by deciding, in a definitive manner, that part of the dispute in their reasoned decision, they have exercised the jurisdictional powers conferred on them by the arbitration agreement. In that case, they have rendered an award (which must meet the formal requirements mentioned above in Para 1 and which is final) and not a procedural order (which must not meet for formal requirements mentioned above under Para 1, may be signed by the chairman alone and is not final but may be changed by the tribunal), irrespective of how the decision is called and framed by the arbitral tribunal. Thus, in the context of the qualification of the nature of the arbitrators’ decision, the domestic courts always retain the last word. Otherwise, a tribunal could shield its decision from attack by the courts in setting aside and enforcement proceedings, simply by disguising it as a procedural order.



Please cite as: "Commentary to Trans-Lex Principle , "
References
Arbitration Rules
Court Decisions
International Legislation
Miscellaneous
Model Laws
National Legislation
Contract Clauses
1. Contractual Clause Ruling Formal Requirements
Sales & Purchase Contract
Dispute Resolution
(...) The award shall be in writing, shall be signed by a majority of the arbitrators, and shall include a reasoned statement including findings of fact and rationales or reasoning for their award - (International Contracting: Law and Practice – Larry A. DiMatteo – §2.05 A – S. 26)
Appeal to Arbitration Tribunal
Judgment upon the award rendered may include compensatory damages against any Party, but under no circumstances will special, incidental, indirect, consequential, punitive, exemplary or multiple damages including, but not limited to, lost profits, be authorized, made or paid – (International Contracting: Law and Practice – Larry A. DiMatteo – §2.05 A – S. 26)
Dispute Resolution Clause
(...) the award decision of the arbitral panel shall state the reasons upon which the award is based and the decision shall be final and binding on both parties and both parties waive the right to any appeal under any system of law. The award shall be enforceable before any court of competent jurisdiction upon the application of such court by either party. The arbitral panel shall be instructed that no award may include indirect, consequential, punitive or multiple damages - (International Contracting: Law and Practice - Larry A. DiMatteo - §3.18 - S. 87)
Arbitration
The arbitral award shall be in writing, state the reasons for the award, and be final and binding on the parties to the arbitration. The Tribunal shall be empowered to award, in addition to monetary damages as and to the extent permitted to be recovered under this Agreement, equitable relief, including an injunction and specific performance to the extent permitted by Section X. The Tribunal shall be authorized in its discretion to grant pre-award and post-award interest. Any costs, fees or taxes incident to enforcing the award shall, to the maximum extent permitted by applicable Laws, be charged against the Party resisting such enforcement. Judgment upon the award may be entered and enforced in any court having jurisdiction thereof or having jurisdiction over the relevant Party or its assets.
2012
Services Contract
Decision and Enforcement of Award
The award of the arbitrator shall be in writing stating the reasons for the arbitrator's ruling, with one counterpart delivered to each party (...)
2003
Arbitration
The arbitral award shall be substandiated in writing (...)
2006
Arbitration Agreement
Procedure
(...) I agree that the arbitrator shall have the power to decide any motions brought by any party to the arbitration, including motions for summary judgment and/or adjudication and motions to dismiss and demurrers, prior to any arbitration hearing. I also agree that the arbitrator shall have the power to award any remedies, including attorneys’ fees and costs, available under applicable law. I understand the company will pay for any administrative or hearing fees charged by the arbitrator or AAA except that I shall pay the first $200.00 of any filing fees associated with any arbitration I initiate. I agree that the arbitrator shall administer and conduct any arbitration in a manner consistent with the Rules and that to the extent that the AAA’s national rules for the resolution of employment disputes conflict with the Rules, the Rules shall take precedence. I agree that the decision of the arbitrator shall be in writing.
Merger Agreement
Award
Upon the conclusion of any arbitration proceedings hereunder, the arbitrator will render findings of fact and conclusions of law and a written opinion setting forth the basis and reasons for any decision reached and will deliver such documents to each party to this Agreement along with a signed copy of the award.
2013
Trust Agreement
Resolution of Disputes
(...) The final decision of the arbitrators must be issued in a written form, and the arbitrators will be required to provide a copy of the final written decision to the Buyer Parent, the Majority Sellers and the Trustee (...) 
2007
2. Contractual Clause Ruling Contents of Award
Sales & Purchase Contract
Conduct of Arbitration
The arbitration award and decision will be a reasoned decision, and will state with particularity, in writing, the legal and factual basis for the decision. The arbitration award and decision will be final and binding upon the parties and accordingly the parties irrevocably waive any argument that any Dispute should not be submitted to, or resolved by, binding arbitration and any arbitration award will not be subject to review or appeal except on the grounds set forth in the Federal Arbitration Act, 9 U.S.C. § 1 et seq. Each party will pay its own costs and expenses of arbitration as well as the fees and expenses of any party-appointed arbitrator. All remaining administrative costs of arbitration, including the costs of AAA and any arbitrator appointed jointly or by the AAA, will be paid 50% by X and 50% by Y. The arbitration panel will be authorized in its discretion or as otherwise authorized by Law, to grant pre- and post-award interest at a rate equal to the weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System (...)
2009
Arbitration
The arbitral award shall be in writing, state the reasons for the award, and be final and binding on the parties to the arbitration. The Tribunal shall be empowered to award, in addition to monetary damages as and to the extent permitted to be recovered under this Agreement, equitable relief, including an injunction and specific performance to the extent permitted by Section X. The Tribunal shall be authorized in its discretion to grant pre-award and post-award interest. Any costs, fees or taxes incident to enforcing the award shall, to the maximum extent permitted by applicable Laws, be charged against the Party resisting such enforcement. Judgment upon the award may be entered and enforced in any court having jurisdiction thereof or having jurisdiction over the relevant Party or its assets.
2012
Arbitration Agreement
Arbitration fees and costs; Attorneys' fees
(...) The arbitrator's award in any arbitration brought pursuant to the provisions of this Agreement shall provide for the prevailing party to recover from the other party the prevailing party's reasonable attorneys' fees relating to such action.
2004
Merger Agreement
Resolution of Conflicts
(…) The arbitrator's authority shall be confined to: (A) whether the Indemnified Party is entitled to recover on the indemnification claim (or a portion thereof), and the portion of such indemnification claim the Indemnified Party is entitled to recover and (B) whether either party to the arbitration shall be required to bear and pay all or a portion of the other party's attorneys' fees and other expenses relating to the arbitration. The final decision of the arbitrator shall include the dollar amount of the award to the Indemnified Party, if any (the Award Amount​), and shall be furnished, in writing, to the Parent, the Securityholder Representative, the Indemnified Party and the Escrow Agent, shall constitute a conclusive determination of the issues in question, binding upon the Securityholder Representative, the holders of all Company Capital Stock (other than the holders of Dissenting Shares) and the Indemnified Party. Within three (3) days following the receipt of the final award of the arbitrator setting forth the Award Amount, Parent and the Stockholders' Representative shall jointly execute and deliver to the Escrow Agent a written notice instructing the Escrow Agent to release to the Indemnified Party from the Escrow Fund an amount equal to the Award Amount.
2014
A project of CENTRAL, University of Cologne.